# Petition for Writ of Certiorari — Jacobs v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1886%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 471 U.S. 1099

## Text

Sd= 996 Y | ome . Court, US. | |

D |
DEC 21 108¢ |

pee ans pu NT ates <) dere 7 ih Ss,

~ ak as |

CLERK
In the Supreme Court of the United States

October Term, 1984

Jean Marie Jacobs, as Executrix of the Estate
of Thomas L. Jacobs, deceased,

Petitioner,
ws

The United States of America,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
FOURTH CIRCUIT

Michael Parham
Andrew L. Abrams
Counsel for the Petitioner

P.O. Box 2547

508 East North Street
Greenville, S. C. 29602
(803) 271-2270

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR
HARD COPY AT THE TIME OF FILMING.
IF AND WHEN A BETTER COPY CAN BE
OBTAINED, A NEW FICHE WILL BE
ISSUED.

QUESTIONS PRESENTED

1. Whether the, doctrine of Feres v.

United States, 340 U.S. 135 (1950) serves

as an absolute bar to medical malpractice
actions brought pursuant to the Federal
Torts Claim Act. 28 U. S. C. Section 2671
et seg, solely because the deceased
suffered the injuries from this malpractice
while on active duty status during
corrective surgery which was neither

"in the line of duty” nor "incident to

service"?

(I)

TABLE OF CONTENTS

Page
Opinions Below....... ‘aces es Tre rr. 1
JUPESELSOEBOR « s «6 ess eseevbecen dann cbene 1
Statutes Lave lVOGs «6 a'séctes cee seit wres 1
Statement .«cevscsevsseas haba evun“ees #4 2

Reason for granting the Petition.... 5

1. The United States Court
of Appeal for the Fourth
Circuit has rendered a
decision in conflict with
the guideli»e and factors
set forth by the United
States Supreme Court in
that body of cases giving
rise to the so-called
Feres Doctrine, by
utilizing the mere "duty
Status" as the determinative

criterion.
Conclusion..... TETTCTS LTTE CC CT Ce ee 20
Appendix A...... WeeTercerccct otc re re la
AppeNGix Bassisswece Terre ere Terre e
Appendix. Cisisacscses rte ys ere ee eee e 24a
Appendix Di iiccisasesane were rs bvteee 26a

(II)

Appendix
Appendix
Appendiix
Appendix
Appendix

Appendix

Cases:

(III)

TABLE OF AUTHORITIES

Brooks v. United States
Pe ye ee OS ee

Chappel v. Wallace
103 S. Ct. 2362 (1983) ...ssoe-

Dalenite vs. United States
346 U.S. 15 (1953)..........-..

Feres v. United States
Dn aie. Dee SO. peepee cecese

Indian Towing Co. v. United
States
Bee See A CAPSS) occ ececevers

United States v. Brown
en PD Re. ore

United States v. Muniz
‘yo fw Pee: ee | ee

Statutes:
28 U.S.C. Section 2671 (App.H)
28 U.S.C. Section 2674 (App.TI)

10 U.S.C. Section 1089(a) (App.J)

OPINIONS BELOW

The opinion of the United States
Court of Appeal for the Fourth Circuit
(App.A) is an unpublished decision. By
the Order of the United States District
Court for the District of South
Carolina, Greenville Division (App.B)
is likewise an unreported opinion.

JURISDICTION
The opinion of the United States
Court of Appeals for the Fourth Circuit
was filed on September 27, 1984. The
jurisdiction of this court is invoked
under 28 U.S.C. 1254 (1).
STATUTES INVOLVED
~28 U.S.C. Section 2671 (App.H)
28 U.S.C. Section 2674 (App.TI)

10 U.S.C. Section 1089(a) (App.J)

(1)

(2)

STATEMENT OF THE CASE

The Petitioner, Jean Marie Jacobs,
acting as Executrix of the Estate of her
deceased husband, Thomas L. Jacobs, brought
this medical malpractice action alleging
that the commission of malpractice by the
agents and servants of the Respondent United
States of Amercia resulted in the wrongful
death of her husband. This action was
instituted in the United States District
Court for the District of South Carolina,
Greenville Division, pursuant to 28 U.S.C.
Section 1346 (b) and the Federal Torts Claim
act (FTCA), 28 U.S.C. Section 2671, et seq.
The Plaintiff's deceased was a Major on
active duty in the United States Air Force
in Sumter, South Carolina, when he elected
to undergo elective open heart surgery to

repair a congenital heart defect at Wilford

\ 2)

Hall Medical Center at Lackland Air Force
Base in San Antonio, Texas. The Plaintiff's
deceased was placed on temporary duty status
("TDY") at Wilford Hall Medical Center for
the purposes of performing this corrective
Surgery. The Plaintiff alleges that during
the course of this surgical procedure the
military physicians at Wilford Hall Medical
Center negligently. ligated the left
circumflex branch of the decedent's
coronary artery, which was neither diseased
nor involved in the planned operative
procedure, with this negligent ligation
directly and proximately causing’ the
decedent's death.

The Defendant filed an Answer and

th

thereafter filed a Motion to Dismiss or
Summary Judgment pursuant to Federal Rule
of Civil Procedure 56(b). On November 23,

1983, the United States District Court

(4)
issued its Order granting the Defendant's
Motion for Summary Judgment and Dismissing
the Plaintiff's Complaint, concluding that
the Plaintiff's claim was barred by the
so-called “Feres Doctrine”.

Thereafter, the Plaintiff appealed
this decision to the United States Court
of Appeals for the Fourth Circuit, pursuant
to 28 U.S.C. 1291. The United States Court
of Appeals issued its opinion on September
27, 1984, affirming the decision of the
United States District Court, and likewise
concluding that the prior decisions of the
United States Supreme Court constituting
the "Feres Doctrine", bars the Plaintiff's
claim.

The Plaintiff, faced with the prospect.
of receiving only veterans benefits from

the United States Government in the combined

amount of Three Hundred Twenty-three

(5)
($323.00) Dollars per month, has brought
this Petition for a Writ of Certiorari
pursuant to 28 U.S.C. 1254 (1), seeking an
issuance of a Writ to the United States
Court: of Appeals to insure the proper
adjudication of this matter.
RESAONS FOR GRANTING THE PETITION

The United State" Court of Appeals

decided a substanial federal question in

a way contrary to the decisions of this

Court in Feres vs. The United States, 340

U.S.C. 135 (1950), and those subsequent

cases giving rise to the "Feres Doctrine."

The underlying basis for the
Defendant's Motion to Dismiss and for
Summary Judgment. was the erroneous
contention that if, at the time of is
negligently performed elective corrective
surgery, the Plaintiff's decedent was

Classified under a duty status that could

(6)

ke deemed "active", any action under the
Federal Torts Claim Act by nis Estate would
be automatically barred by Feres. The
United States District Court and the United
States Court of Appeals in the present case
both adopted this mechanical and overbroad
extension of the "Feres Doctrine."

The Federal Torts Claim Act is devoid
cf any reference to a statutory or
constitutional bar or waiver of an action
against the United States by a member of
the military service. Rather, the "Feres
Doctrine" was merely a judicial interpre-
tation of the Federal Torts Claim Act set
down by the United States Supreme Court in
1950 in Feres when it held that:

",..[{t]he Government is not liable
under the Federal Tort Claims Act for
injuries to servicemen where the injuries

arise out of or in the course of activity

incident to service." 340 U.8« 135, -146

(1950).

Nevertheless, subsequent Courts have,
on occasion, recognized that a mere demon-
stration that the Plaintiff is in military
service does not, per se, act as an absolute
bar to recovery. Utilizing the various
guidelines and tests espoused in these
subsequent cases, as well as the underlying
principles and policy motives which gave
rise to Feres, it is submitted that the
United States Court of Appeals erred in
finding Feres to constitute an absolute bar
Simply upon the basis that the Plaintiffé's
decedent was on “active duty”. Only if that
Classification of duty § status (i.e.
"active") is the determative factor which
results in a violation of those policy
motives set down as the basis of Feres,

should duty status form the basis of this

(8)

bar. In the present case, there is no
requisite correlation between the
decedent's duty status and the underlying
principles of the "Feres Doctrine”.

The only factual information before
the United States District Court and United
States Court of Appeals was provided in the
Affidavit of Appellant (App. G) and the
Plaintiff's Answer to Request for Admission
(App. E) which was filed in response to the
Defendant's request for Admission (App. D).
In the framing of the Respondent's Request
for Admission, it is clear that’ the
Respondent 's true position is that the Court
has no discretion except to apply a purely
mechanical fo mula to the Petitioner's
Claim. This request asked for an admission
that "Thomas L. Jacobs was on active duty
in the United States Air Force, and was
subject to military discipline and to

military control", to which the Plaintiff

(9)

admitted only that "Thomas L. Jacobs was
employed by the United States Air Force,
with the remainder of the Request of
Admission being denied

Further, in her Affidavit of
Appellant, the Plaintiff swore, “during no
period of time while at Wilford Hall in
either March of 1981 or May of 1981, did
the decedent perform any military
service-related activities” and neither
"was the decedent given any military orders
or commands.”"(App. G). Therefore, it is
respectfully submitted that because the
Petitioner's deceased traveled to Wilford
Hall soley for the purpose of undergoing
voluntary elective surgerical procedure,
that the implementation of a “duty status"
standard is in direct viclation of the prior.
opinions of this Court.

In Brooks v. United States, 337 U.S.C.

49 (1949) the United States Supreme Court

(10)

recognized that the mere fact that a
claimant is a member of the United States
Armed Forces when he sustained an injury
or loss as a result of the wrongs of another
member of the Armed Forces, does not, of
itself, preclude recovery under the Federal
Tort Claims Act. Instead, the Courts have
consistently required that the status of
the Plaintiff in the military be accompanied
by some additional inter-relationship
between what the Plaintiff was doing at the
particular moment of injury and his military
status. Additionally, this inter-relation-
ship has been couched in terms of injuries
arising out of the “line of duty" or.
injuries arising “incident to military
service.” The implementation of a new
"active duty” standard is contrary to the
prior holdings of this Court and the
underlying rationale of these decisions.

The first rationale utilized by the

(11)

Supreme Court was the absence of a
soldier-government analogy existing in
present day (1950) liability law. This was
an attempt by the Feres Court to look to
the language of the Act which subjects the
United States to the same measure of
liability as would confront a private
individual under like circums*.ances. The
Court found that military servicemen's
claims were lacking, reasoning that private
persons do not possess such authority as
the government has in the echelons of
command. Although, the Supreme Court
attempted to extend this rationale of
analogous private liability as a basis for
creating an arbitary bar to recovery ina

non-military context Dalehite v. United

States, 346 U.S. 15 (1953), this narrow
interpertation of the FTCA was struck down
by the Court only two (2) years later in

Indian Towing Co. v. United States, 350 U.S.

(12)

61 -€295S) . It is respectfully submitted
that the recognition by the Court that in

Indian Towing, supra that an absolute bar

in the non-military context would frustrate
the Act's objective of reducing private
bills and relieving the injustices caused
by sovereign immunity. Further, the
thirty-four (34) years of litigation
experience now makes immunity the exception
rather than the rule and totally discredits
the applicability of the first Feres
rationale.

The second rationale of Feres was the
declared unfairness to the soldier of
resolving his claim against the Government
pursuant to the law of the state where the
alleged wrong occurred, given the soldier's
inability to select his duty station.
Obviously, the Petitioner would much prefer

to apply the law of the State of Texas,

(13)

including its law of conflicts rather than
to have no tort action at all.

Thirdly, the Court found again that
it would be unfair to the serviceman to
force him to be bound by a policy of applying
law based upon a geographic location. The
basis for this principle was that in many
states work-connected injuries were covered
by a Workmens' Compensation Statutes with
no resulting tort liability. Further, of
those states where state law would permit.
tort recovery, the available defenses and
amount of recovery would vary dramatically
from state to state, thus subjecting the
soldier-claimant to a geogtaohic consid-
eration over which he had no control.
Again, the possibility of a tort recovery
in the present case, regardless of the law
imposed by geography, is certainly

preferable to no recovery at all. Further-

(14)

more, the analogy between state Workmens'
Compensation assistance requires the Court
to assume some exclusivity clause. A
Similar exclusivity clause is not contained
in the Veterans Benefits Act (38 U.S.C.
740), and, therefore, the third rationale
is not violated by the Petitioner's present
action.

Fourthly, it has been said that one
(1) reason for the Feres result was the
availability of veteran's benefits for
service-connected injuries. This rationale
is without merit when applied to the
Plaintiff's litigation, since the
Plaintiff's decedent left as surviving
beneficiaries his wife and two (2) young
children. This family receives from the
United States Government in Veterans
Compensation and indenmity, the sum of Three
Hundred Twenty-three ($323.00) Dollars per

month which reduces to Two Hundred Fifty-

(15)

five ($255.00) Dollars per month on October
20, 1991 and -0- Dollars as of December 28,
1993 (App. F). The Plaintiff's deceased
was a Thirty-two (32) year old practicing
endodontist at the time of his death and
unquestionably his present earning capacity
and future earning potential was far
superior to the veterans benefits available
to the Plaintiff and her family.

It has now been recognized that the
primary rationale behind the "Feres
Doctrine" which remains viable is the
impropriety of imposing state law on the
distinctively federal relationship between
a-soldier and his government. This
rationale is generally referred to as the
"maintenance of military discipline"
consideration and has been most recently

reiterated in the case of Chappell v.

Wallace, 103 S. Ct. 2362 (1983) in which

the Court concluded:

(16)

"The need for unhesitating and
decisive action by military officers and
equally disciplined responses by enlisted
personnel would be undermined by a
judicially-created remedy exposing officers
to personal liability at the hands of those
they are charged to command."(Chappell, p.
2363)

The question then becomes whether or
not this admittedly proper goal is
rationally furthered by a bar against
technically active duty servicemen injured
by negligent medical treatment rendered for
non-combat related, nontraining related and
non-military related disorders. Obviously,
military discipline could in no way erode
as a result of the maintenance of the
present action. There is neither an erosion
of military authority nor the ability to
command in allowing an individual to
maintain a lawsuit against his military
physicians when at the time of the alleged
negligence that individual was being

Operated upon while under general

(17)

anesthesia. In this factual setting there
were no military objectives which required
decisive action by a military officer and
no order could have been given’ the
Petitioner's decedent for which the
decedent would have been able to respond.
Based upon the above-stated rationale,
the United States Supreme Court has adopted
a "line of duty" standard as opposed to the
"active duty” standard utilized by the
United States Court of Appeals in the

present case. In the case of United States

v. Brown 348 U.S. 110 (1954), the Court held

as follows:

"We adhere also to the line drawn in
the Feres case between injuries that did
and injuries that did not arise out of or
in the course of military duty." (Brown
p.113)

Subsequently, the Supreme Court again
reiterated its adherance to the "line of

duty" standard as revealed in the statement

of the Court in United States v. Muniz 374

(18)
U.S. 150 (1963) where the Court concluded:

"In the last analysis, Feres seems best
explained by the peculiar and _e special
relationship of the soldier to Ris
Superiors. The effects of the maintenance
of such suits on discipline, and the extreme
results that might obtain if suits under
the Tort Claims Act were allowed found
negligent orders given or negligent acts
committed in the course of military duty."
This “line of duty" standard continues to
be implemented by the Supreme Court and,
therefore, the application of an "active
duty" standard is in direct violation of
the prior decisions of the Court.

Had this "line of duty" standard been
implemented, the Petitioner clearly would
have been allowed to proceed with her action
Since the operation undergone by the
Petitioner's deceased was not the result
of any injury incurred in battle, military
exercise or other related military
incident. Rather the decedent was

undergoing a purely elective surgical

procedure for the repair of a congenital

(19)

heart defect and was plaed on temporary duty
status as a mechanism for transfering the
decedent from Shaw Air Force Base where he
practiced as an endodontist to Wilford Hall
Medical Center. This transfer was at the
request of the decedent and was not for the
‘purpose of performing any function for the
United States (App. G).

Lastly, it must be noted that at the
time of the Feres decision in 1950, 10
U.S.C. §109, which now grants total immunity
to military physicians guilty of medical
negligence while treating military
personnel, was not in existence. In 1950
and prior to the passage of the afore-
mentioned act, a serviceman barred by Feres
from recovery against the United States
could still bring a subsequent legal action
against the individual physician. Now,
neither the serviceman nor his family has

any remedy, either individually or against

(20)

the United States should the “active duty”
standard of the United States Court of
Appeals be implemented.

If the decision of the United States
Court of Appeals stands, then a new standard
will have been implemented in direct
conflict with the "Feres Doctrine" as
established by the prior decisions of the
Court, in that recovery will be barred
irrespective of whether or not the negligent
acts occurred either "in the line of duty"
or "incident to military service."

CONCLUSION

A review of the opinion below is
necessary to insure the proper application
of the standard and rationale of the "Feres
Doctrine" and to resolve the conflict of
the prior cases of this Court with the new
"active duty" standard implemented by the

lower Court. Accordingly, the Petitioner

eS Sr eee

a

(21)

would respectfully request the issuance of
a Writ of Certiorari to the United States
Court of Appeals to consider the questions
presented together with all subsidiary
questions fairly included therein.

Respectfully submitted.

MICHAEL PARHAM

ANDREW L. ABRAMS

Abrams, Bowen & Parham
P.O. Box 2547

508 East North Street
Greenville, S. C. 29602
803-271-2270

December 19, 1984

la

APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 83-2156

Jean Marie Jacobs, as Executrix of

the Estate of Thomas L. Jacobs,

deceased, Appellant.
- versus -

The United States of America, Appellee.

Appeal from the United States District
Court for the District o£ South Carolina,
at Greenville. G. Ross Anderson, Jr.,
District Judge. (C/A 83802)

Argued: August 7, 1984. Decided: Sept.27, 1984

Before RUSSELL, HALL AND CHAPMAN, Circuit Judges

Michael Parham (Andrew L. Abrams, Abrams,
Bowen and Parham on brief) for Appellant;
John B. Grimball, Assistant United States
Attorney, for Appellee.

2a

PER CURIAM:

This is a medical malpractice action
brought by Jean Marie Jacobs, executrix of
the estate of Major Thomas L. Jacobs, against
the United States pursuant to the Federal
Tort Claims Act, 28 U.S.C. §2671 et seg.
The District Court granted summary judgment
to the United States, finding that the plaintif£é€
claim was barred by the doctrine of Ferese

v. United States, 340 U.S. 135 (1950). We

affirm.

Thomas L. Jacobs, the decedent, was
a career 'military officer in the United
States Air Force, and was stationed at Shaw
Air Force Base, South Carolina, where he
served as a dentist. Having been advised
that he would need corrective surgery to
repair - congential heart defect, Jacobs
elected to undergo open heart surgery at

Wilford Hall Medical Center, an Air Force

hospital near San Antonio, Texas, in March,

3a

1981. He was placed on temporary duty
status at Wilford Hall for the purposes of
the operation, and was treated by medical
personnel employed by the Air Force. After
completion of two surgical procedures and
convalescence Jacobs was allowed to return
to his normal duries. Jacobs died on
December 29, 1981, allegedly due to the
negligence of the military physicians in
ligating a branch of his coronary artery.
Feres holds that "the Government is
not liable under the Federal Tort Claims
Act for injuries to servicemen when the
injuries arise out of or in the course of
activity incident *o service."340 U.S. at
146. The common fact in the three actions
held barred in Feres, including two medical
malpractice cases involving military
surgeons, was that Ration Claimant, while

on active duty and not on furlough, sus-

4a

tained injury due to negligence of others
in the armed forces." Id. at 138. The
decedent had not been taken off active duty
in the Air Force when the alleged mal-
practice occurred, nor was the temporary
reassignment to Wilford Hall the equivalent
of a furlough. Accordingly, the plaintiff's
Claim must be held barred by Feres.

The judgment of the District is

accordingly.

AFFIRMED.

5a

APPENDIX B
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA

GREENVILLE DIVISION
JEAN MARIE JACOBS, ) CIVIL ACTION
Executrix of the Estate of ) NO. 83-802-3
Thomas L. Jacobs, Deceased,)

Plaintiff,

vs.

ORDER

UNITED STATES OF AMERICA,

i

Defendant.
This is a medical malpractice action

alleging wrongful death, brought pursuant
to 28 U.S.C. §134(b) and the Federal Tort
Claims Act (FTCA), 28 U.S.C. §2671, et sec.
The complaint filed on April 4, 1983, also
contained allegations of constitutional
violations arising under 42 U.S.C. §1983
and §1988, as well as under the Fifth and
Fourteenth Amendments to the United States
Constitution. The Government served and

filed its answer in due course, and,

6a

thereafter, filed a motion to dismiss, or
for summary judgment.

The motion was heard on October 6,
1983. At the hearing the Plaintiff with-
drew, without prejudice, allegations of
constitutional violations. The remaining
issues are barred by the "Feres Doctrine",
on the following facts and authorities.

FINDINGS OF FACT

i. The Plaintif£ is a citizen and
resident of the State of South Carolina.
The acts and omissions complained of
occurred in the State of Texas.

2- The plaintiff is the duly
appointed, qualified and acting Executrix
of the Estate of Thomas L. Jacobs, deceased.

3 At all times complained of, and
in particular during 1981, the United States
Department of the Air Force operated a
hospital near San Antonio, Texas, known as

the Wilford Hall USAF Medical Center, at

=

ja

Lackland Air Force Base, Texas. The medical
treatment complained of in this case was
at the hands of medical personnel employed
by the Department of the Air Force at
Wilford Hall Medical Center.

4. The acts of negligence complained
of occurred in March, 1981. At that time,
and at all other times relevant to this
case, Major Thomas L. Jacobs, the decedent,
was a Career military officer of the United
States Air Force who would have been
eligible for retirement on December 15,
1990. His permanent duty station during
1981 was Shaw Air Force Base, South
Carolina, where he served as a dentist.

5. The medical treatment involved in
this case was open heart surgery intended
to repair a congenital heart defect. The

defect was first detected in November of

1979. In May, 1981, the decedent was

8a

advised that he would need some type of open
heart surgery to repair the defect within
five years. In November, 1980, the decedent
began to experience some chest discomfort.
and was not able to engage in strenuous
activity, to the extent that he had been
able to previously, without becoming
somewhat short-winded. In early February,
1981, the decedent was advised by various
physicians™ that he soon should undergo
corrective heart surgery. As this was q
elective surgery, he checked with
physicians in Florida, in South Carolina,
and in Texas, and ultimatley decided that
Wilford Hall Medical Center was the best
possible location for his surgery.

6. In March of 1981 the deceased was
placed on temporary duty status ("TDY") at

Wilford Hall Medical Center for purposes

4

of corrective surgery. He underwent

9a

coronary catheterization which revealed an
anomalous left-anterior, descending,
coronary artery arising from the pulmonary
artery. It was decided by the United States
Air Force physicians who were treating Major
Jacobs that a saphenous vein by-pass would
be performed, to include termination of the
blood flow from the pulmonary artery into
the anomalous left-anterior, descending
coronary artery, with an ultimate by-pass
to the aorta. Major Jacobs underwent this
surgical procedure at Wilford Hall Medical
Center, Lackland Air Corce Base, San
Antonio, Texas, in March, 1981.

Fe Twenty-four hours after surgery
a continous heart murmur was heard.
Recatheterization revealed the continued
existence of an anomaly in the vesseis

arising from the pulmonary artery. It was,

therefore, determined by the physicians at

10a

Wilford Hall that. another surgical
procedure was required. This second
procedure consisted of the ligation of an
orifice from the pulmonary artery, and was
performed at Wilford Hall in March, 1981.

8. After completion of the second
surgical procedure Major Jacobs was allowed
to convalesce and then was returned to
normal duties at Shaw Air Force Base, South
Carolina. Major Jacobs was given a medical
clearance after a six week check-up in
September of 1981 and was told to follow
his normal lifestyle, including tennis,
jogging and other strenuous activity.

9. The surgery undergone by Major
Jacobs in March, 1981, at Wilford Hall
Medical Center, was elective surgery,
voluntarily undergone by him while on duty
in the United States Air Force. The

surgical and other medical services

lla

provided were provided in the course of his
military service in the United States Air
Force, by physicians and other medical
personnel who themselves were on duty in
the United States Air Force and acting
within the scope of their employment.

10. On December 29, 1918, while
off-duty but not on leave, the deceased
collapsed after jogging and died. It is
alleged, and for purposes of ruling on the
Government's motion taken to be true, that
Major Jacobs died because during one of
the operative procedures performed in
March, 1981, military physicians at Wilford
Hall Medical Center negligently ligated the
left circumflex branch of the decedent's
coronary artery, which was neither diseased
nor involved in the planned operative
procedure, resulting in a total occlusion
of that artery and, ultimately, ina total

occlusion of that artery and, ultimately,

12a

in a total occlusion of that artery and,
ultimately, in a myocardial infarct to the
lateral portion of the left ventricle of
his heart, directly and proximately causing
his death.

11. On December 29, 1981, the deceased
was a thirty-two year old married man, with
two minor children. As a direct result of
his death, his two children, and his widow,
Jean Marie Jacobs, are entitled to receive,
and in fact are receiving, Veterans Benefits
from the United States Government in the
combined amount. of Three Hundred
Twenty-three ($323.00) Dollars per month,
together with One Thousand Sixty
($1,060.00) Doilars per month in Social
Security benefits.

CONCLUSIONS OF LAW

The Court has jurisdiction of the

parties and of the subject matter pursuant

13a

to the Federal Tort Claims Act.
This action is governed by the Rule

enunciated in Feres v. United States, 340

G.8. 233 iva0r. In Feres, in evaluating
whether a serviceman might have a recog-
nizable cause of action against the United
States, the Court concluded that, "the
Government is not liable under the Federal
Tort Claims Act for injuries to serviceman
where the injuries arise out of or are in
the course of activity incident to service."
240 ‘Ge SS. 133, 146. 41950} «

The rationale in Feres recently has
been affirmed and broadened by the Supreme

Court in the case of Stencel Aero Engi-

neering Corp. v. United States, 431 U.S.

666, (1977). In Stencel, a third party

plaintiff was denied relief against the
United States where that rhird party was

seeking indemnity for damages for which it

l4a

was being sued by an injured National Guard
officer. The Court held that, “the right
of a third party to recover in an indemnity
action against the United States ... must
be held limited by the rationale of Feres
where the injured party is a serviceman."
431 U.S. 666, 674 (1977).

Lower courts have applied the Feres
rationale in different ways. Some circuits
have applied a strict “but for” test and
have denied recovery in cases where the
injury was related to or dependent upon the

members’ military service. Harten v. Coons,

502 F. 2d 1363 (10th Cir. 1974), cert.

denied, 420 U.S. 963 (9175); Shults v.

United States, 421 F.2d 170 (Sth Cir. 1969);

Chambers v. United States, 357 F.2d 224 (9th

Cir. 1966) (off-duty member injured at base

swimming pool); Buer v. United States, 241

P.246 3 (7th Cir. 1956), cart. Geniea, 353

15a

U.S. 974 (1957) (soldier injured while on
leave but suing for treatment received in
military hospital).

Other courts have denied recovery on
the basis of the member being subject to
military discipline at the time of the

injury. Alexander v. United States, 500

F.2d 1 (9th Cir. 1974), cert. denied, 419

U.S. 1107 (1975) (elective gall bladder

surgery); Herreman v. United States, 476

F.2d 234 (7th Cir. 1973) (non-duty status
National Guard officer during riding space-
available in a military aircraft).

In Henninger v. United States, it was

held that, “Feres absolutely bars Federal
Tort Claims actions by servicemen injured
‘while on active duty and not on furlough
--. due to the negligence of other in the
Armed Forces.'" 473 F.2d 814 (9th Cir.

1973); cert. denied, 414 U.S. 819 (1973).

l6a

Henninger involved a case of admitted

medical malpractice by U.S. Navy surgeons.
The Ninth Circuit reasoned that, in order
to preserve discipline and the orderly
conduct of military affairs, it is more
important to draw a clear line against suit
by military personnel against the Govern-
ment than to be able to justify in every
case exactly where the line is drawn.

The Fourth Circuit Court of Appeals
follows the mechanical test laid down in

Feres, as explained in Henninger. In Hass

v. United States, 518 F.2d 1138 (4th Cir.

1975) the plaintif£ was on active duty,
though in an “off-duty” status, at the time
he was injured while riding a horse rented
from a Marine Corps stable. The district
court granted summary judgment for the
Government and the Fourth Circuit affirmed,

holding:

17a

"Incident to service” is not, of
course, a narrow term restricted to
actual military operations such as
field maneuvers or small arms instruc-
tion. It has been held that a member
of the military is engaged in activity
incident to his military service when
he is enjoying a drink in a noncommissioned
officers club, .. . when he is riding
a donkey during a ballgame sponsored

by the Special Services division of

a naval air station, . . . and while
swimming in a swimming pool at an air-
base, .. . 518 F.2d at 1141 (citations
omitted).

= am

We hold that an active duty service-

man, temporarily in off-duty status

and engaged in recreational activity

on a military base, cannot sue the United
States for the alleged negligence of
another serviceman or civilian employee
of the military. 518 F.2d at 1142.

In Buckingham v. United States, 394

P.2d 483 (4th Cir. 1968), the plaintiff
alleged medical malpractice in the refusal
of the Langley Air Force Base Hospital to
promptly admit the decedent, a master
sergeant in United States Air Force. The

Fourth Circuit affirmed summary judgment

18a

granted the Government, noting that the case
was "not meaningfully distinquishable from
Feres", 394 F.2d at 484, and that Congress
had provided a uniform system of compen-
sation for the death of a service member.

In Stansberry v. Middendorf, 567 F.2d

617 (4th Cir. 1978), the Fourth Circuit.
relied on its earlier holding in Hass,
supra, in holding that a naval serviceman
injured while on "a normal weekend liberty”
could not maintain a Federal Tort Claims
Act suit against the Government because at
the time of alleged neutionis "the plaintiff
was on active duty and not on furlough",

567 F.2d at 618. Accord, Mariano v. United

States, 605 F.2d 721 (4th Cir. 1979).

In Keesler v. United States, 514

F.Supp. 1320 (D.S.C. 1981), the district
court gave a thorough review to the Feres

Doctrine, noting that in the Fourth Circuit

19a

the test to be applied is a relatively
mechanical test, “focusing primarily on the
plaintiff's duty status and the location
of the tort." 514 F.Supp. at 1322. In Major
Jacobs' case the alleged tort was committed
by Air Force surgeons at Lackland Air Force
Base, Texas while the decedent was ina duty
status.

Despite the overwhelming authority
supporting application of the Feres
Doctrine, the Plaintiff has argued force-
fully against application on grounds that
it is a judicially declared doctrine that
in fairness should not be applied in this
case. However, matters of equity cannot
decide this case. it is of legal conse-
quences, that Major Jacobs was on duty

during the time of his surgery, see Buer

v. United States, supra, as well as immedi-

ately before and afterwards, and was subject

20a

to the orders and directives of his military
Superiors at Wilford Hall Medical Center,
as were the physicians and staff who treated
him. The Feres case itself made clear that
"the medical care given servicemen in...

hospitals is so entwined with the military
relationship that a serviceman cannot bring
an action under the FTCA for the negligent

provision thereof." Hopkins v. United

States, 567 F.Supp. 491, 495 (E.D.N.Y.
1983).

It is also of legal consequences that.
the surgical procedures undergone by Major
Jacobs at a military hospital were available
to him as a direct result of his sctive duty
status in the United States Air Force. In
other words, this surgery, and its conse-
quences, “arise out of or is in the course
of an activity incident to service",

Feres v. United States, 340 U.S. 135, 146

21a

(1950), and occurred while Major Jacobs was
on duty and not on leave or furlough.

It is also of legal consequences that
the decedent's beneficiaries, including the
Plaintiff herself, are receiving the
veterans benefits which Congress nas
provided as a matter of right, without
regard for issues of fault.

Stencel Aero Engineering Corp. v. United

States, 431 U.S. 666, 671, 673 (1977).
The Plaintiff cites the Court to Downes

v. United States, 249 F.Supp. 626 (E.D.N.C.

1965), as support for her argument that

Major Jacobs' surgery was not “incident to

2 ema

service” in the context of Feres. Downes

is readily distinquishable, however, as the
Plaintiff in that case was on pass at the
time of his injury in a traffic wreck.
Casses involving military leave and fur-

lough are recognized as not arising incident

22a

to service. See Brooks v. United States,

337 U.S. 49 (1949). Futhermore, Downes was

decided well in advance of Hass v. United

States, 518 F.2d 1138 (4th Cir. 1975) and

Stansberry v. Middendorf, 567 F.2d 617 (4th

Ciz. 1978) which hold contrary to
Plaintiff's agrument.

For the foregoing reasons, the Court.
holds that the Plaintiff's action is barred
by the sovereign immunity of the United
States, as articulated in Feres and its
progeny.

Inasmuch as this motion has been heard
with the benefit. of responses to discovery
requests and of an affidavit of the
Plaintiff, it is treated as a motion for
summary judgment. under FRCP 56(b).
Accordingly,

IT IS ORDERED, that the Government's

motion for summary judgment be granted, that

23a

the Complaint be dismissed with prejudice
as to all claims brought under the Federal
Tort Claims Act, and that judgment for the.
Defendant be entered.

s/G. Ross Anderson, Jr.

G. ROSS ANDERSON, JR.
UNITED STATES DISTRICT JUDGE

Anderson, South Carolina

November 23, 1983

24a

APPENDIX C
UNITED STATES COURT OF APPEALS
for the
FOURTH CIRCUIT

No. 83-2156
C/A 83-802

Jean Marie Jacobs, as
Executrix of the Estate of
Thomas L. Jacobs, deceased,
versus

)
)
)
) Appellant,
)
)
The United States of America, )
)

Appelle.
Appeal from the United States District
Court for the District of South Carolina.
This cause come to be heard on the
record from the United States District Court
for the ------- District of South Carolina,
and was argued by counsel.
On consideration whereof, It is now

ordered and adjudged by this Court that the

judgment of the said District Court appealed

from, in this cause, be, and the same is

25a

hereby affirmed.

s/John M. Greacen
CLERK

FILED: September 27, 1984 U.S. Court of
Appeals Fourth Circuit

FILED: October 22, 1984 U.S. District Court

26a

APPENDIX D
(CAPTION OMITTED)

Pursuant to Federal Rule of Civil
Procedure 36, the Defendant requests that
the Plaintiff admit to the following matter:

1. At the time of the death of Thomas
L. Jacobs on December 29, 1981, as well as
at the time of the cardiac surgery performed
on Thomas L. Jacobs on March 9, 1981, as
well as during the period of time between
these two events, Thomas L. Jacobs was on
active duty in the United States Air Force,
and was subject to military discipline and
to military control.

HENRY DARGAN MCMASTER
United States Attorney

By:s/John B. Grimball
JOHN B. GRIMBALL

Assistant United States Attorney

Columbia, South Carolina

June 3, 1983

27a
APPENDIX E
(CAPTION OMITTED)

Pursuant to Rule 36 of the Federal Rule
of Civil Procedure, the Plaintiff hereby
answers the Defendant's Request for
Admission as follows:

1. The Plaintiff admits only so much
of the Defendant's Request for Admission
as alleges that at the time of the death
of Thomas L. Jacobs, as well as at the time
of the cardiac surgery performed on him,
as well as during the period of time between
these two events, Thomas L. Jacobs was
employed by the United States Air Force.

The remainder of the Defendant's
Request for Admission is denied. Such
denial is, however, qualified to the extent.
that Plaintiff admits that on the date of
the surgical procedures performed upon

Plaintiff's deceased, upon information and

284

belief, at the precise time of the negligent.
acts and omissions on the part of the
Plaintiff's deceased's surgeon, the
Plaintiff's deceased was “TDY” to Wilford
Hall and at the time of the negligent acts
on the part of the Plaintiff's deceased's
surgeons, Plaintiff's deceased was under
general endotracheal anesthesia, and
subject only to the control of his treating
surgeon.

ABRAMS, BOWEN & PARHAM

By:s/William L. Dodson, Jr.

FOP: MICHAEL PARHAM
ATTORNEY FOR THE PLAINTIFF

Greenville, South Carolina

June 30, 1983

29a

APPENDIX F
(CAPTION OMITTED)
ANSWER TO INTERROGATORY #8

Benefits due Jean S. Jacobs; Thomas
Lee Jacobs, Jr., and Elizabeth Marie Jacobs
from the United States Government amount
to Three Hundred Twenty-Three ($323.00)
Dollars per month in VA compensation and
indemnity. It is the understanding of the
plaintiff that this amount shall drop to
the sum of Two Hundred Fifty-Five ($255.00)
Dollars per month as of October 20, 1991
and amount to zero dollars as of December
28, 1993. The plaintiff also receives One
Thousand Sixty ($1,060.00) Dollars per
month in Social Security benefits, which
she understands shall continue until the
children complete their education. The only
other benefits received by the plaintiff

‘
was $35,000.00 in serviceman's insurance.

30a

APPENDIX G
(CAPTION OMITTED)

PERSONALLY appeared before me, Jean
Marie Jacobs, (Jean Marie Riddle), who, upon
oath, would say as follows:

That she is the plaintiff£-executrix,
and the surviving widow of Thomas L. Jacobs,
deceased, who now brings this action both
on her behalf and on the behalf of his two
Surviving children; that the decedent was
a career military officer of the United
States Air Force eligible for retirement
after twenty (20) years of service on
December ‘15, 1990; that nevertheless the
decedent had, in October and November of
1981, considered the possibilty of ending
his military service and engaging in private
practice at some location in South Carolina;
during the latter part of 1981 your affiant

and the decedent did inspect various

3la

locations for his possible entry into
private practice.

The congential heart defect, its
repair being the basis of this action, was
not detected until November of 1979. In
May of 1980 the decedent was advised that
he would need some type of open heart
surgery to repair the defect within five
(5) years. In November of 1980 the decedent
began to experience som chest discomfort
and was not able to engage in strenuous
activity to the extent he had previously
engaged without becoming somewhat
short-winded.

In early February, 1981, the decedent
was advised by various physicians that he
should undergo the surgery soon and,
therefore, he checked with physicians in
Florida, Greenville, South Carolina and San

Antonio, Texas, but ultimately advised that

32a

Wilford Hall was the best possible location
for his surgery. Dr. Gerry Harmon,
Department of Flight Surgery, Shaw Regional
Hospital, Shaw Air Force Base; Dr. Shields
Stutts, San Antonio, Texas; Dr. P. I. Lupo,
Greenville, South Carolina; and Dr. B. Bruce
McGraw, and Dr. William Wolverton, both of
Pensacola, Florida, are aware of these
initial contacts and recommendations.
Therefore, the decedent was ultimately
scheduled for surgery under the treatment
and care of r. Robert Barnes, of the
Thoracic and Cardiovascular Surgery Team
at Wilford Hall Medical Center. The surgery
was to take place in March of 1981. An
initial surgical procedure was performed
in March of 1981, and within twenty-four
(24) hours after the rediscovery of a
murmur, another surgical procedure took

place. It was during the initial porcedure

33a

that the decedent's left circumflex branch
was ligated, totally ecluding the flow of
blood through a portion of his heart and
resulting in severe and acute damage. This
negligent ligation of the left circumflex
branch of the decedent's coronary artery
went undetected in the subsequent surgical
procedure which took place in March of 1981.

Furthermore, the negligent ligation of
this artery again went undetected when the
decedent was given a medical clearance after
Six (6) week check-up in September of 1981
and was told to continue a very normal
lifestyle including tennis, jogging and
other strenuous activity.

On Tuesday afternoon at 4:30 p.m. on
December 29, 1981 while jogging, the
decedent fell and experienced heart failure

which has been clearly attributed to the

negligent surgical ligation of certain

34a

coronary arteries, as more fully appear by
the copies of autopsy reports attached
hereto. The decedent was immediately taken
by City Ambulance to Toumey Hospital in
Sumter, South Carolina, where he was
pronounced dead.

Subsequently your affiant was
contacted by Dr. Robert Barnes, the surgeon
who performed the original surgical proce-
dures upon the decedent, who stated "(that)
he was sorry and that he couldn't believe
he had made a mistake and why in the world
did it take eight months for this to come
about."

Your affiant is informed, alleges and
believes that the decedent's designation
of duty as “"TDY" was only a mechanism to
be utilized for military purposes to trans-
fer the decedent to Wilford Hall for the

performance of the surgical procedures in

35a

March of 1981. During no period of time
while at Wilford Hall in either March of
1981 or May of 1981 did the decedent perform
any military service-related activities.
Furthermore, your affiant is informed,
alleges and believes that at no time during
the decedent's visit to Wilford Hall in
March of 1981 and subsequently in May of
1981, was the decedent given any military
orders or commands.
So sayth your affiant.
s/Jean Marie Jacobs

JEAN MARIE JACOBS
(RIDDLE)

36a

APPENDIX H

28 U.S.C. §2671

--.. Acting within the scope of his office

or employment", in the case of a member of

the military or naval forces of the United

States, means acting in line of duty.

37a

APPENDIX I

28 U.S.C. §2674

"The United States shall be liable,
respecting the provisions of this title
relating to tort claims, in the same manner
and to the same extent as a private
individual under like circumstances, but
shall not be liable for interest prior to
judgment. or for punitive damages.

If, however, in any case wherein death
was caused, the law of the place where the
act or omission complained of occurred
provides, or has been construed to provide,
for damages only punitive in nature, the
United States shall be liable for actual
Or compensatory damages, measured by the
pecuniary injuries resulting from_= such
death to the persons respectively, for whose
benefit the action was brought, in lieu

thereof."

YOUa

APPENDIX J

10 U.S.C. §1089

§1089. Defense of certain suits arising

out of medical malpractice

(a) The remedy against the United
States provided by sections 134(b) and 2762
of title 28 for damages for personal injury,
including death, caused by negligent or
wrongful act or omission of any physician,
dentist, nurse, pharmacist, or paramedical
Or other supporting personnel (including
medical and dental technicians, nursing
assistants, and therapists) of the armed
forces, the National Guard while engaged
in training or duty under section 316, 502,
503, 504, or 505 of title 32, the Department
of Defense, or the Central Intelligence
Agency in the performance of medical,

dental, or related health care functions

39a

(including clinical studies and investi-
gations) while acting within the scope of
his duties or employment therein or therefor
shall hereafter be exclusive of any other
Civil action or proceeding by reason of
the same subject matter against such
physicians, dentist, nurse, pharmacist, or
paramedical or other supporting personnel
(or the estate of such person) whose act.
Or omission gave rise to such action or

proceeding.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1886%3A1. Public record. Not legal advice.